Citation Nr: 0030074
Decision Date: 11/17/00 Archive Date: 11/22/00
DOCKET NO. 99-14 062 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee,
Wisconsin
THE ISSUES
1. Entitlement to an increased rating for bilateral pes
planus, currently rated as 30 percent disabling.
2. Entitlement to a total disability rating based on
individual unemployability due to service-connected
disabilities (TDIU).
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
J. D. Parker, Counsel
INTRODUCTION
The veteran served on active duty from March 1965 to March
1969.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a rating decision issued in October
1998 by the Department of Veterans Affairs (VA) Regional
Office (RO) in Milwaukee, Wisconsin, which denied the
benefits sought on appeal.
The October 1998 rating decision also increased the rating
for the veteran's service-connected low back disability to 40
percent. However, because the veteran did not enter notice
of disagreement with this decision, the issue of entitlement
to an increased rating for the low back disability is not
currently before the Board on appeal.
The issue of entitlement to a TDIU is addressed below in the
REMAND portion of this decision.
FINDING OF FACT
The veteran's service-connected bilateral pes planus is
manifested by objective evidence of marked deformity (20
degrees varus, 30 degrees bilateral hallux valgus), pain
accentuated on use, and characteristic callosities, and is
not manifested by pronounced pes planus, marked pronation,
extreme tenderness of plantar surfaces of the feet, marked
inward displacement, or severe spasm of the tendo achillis on
manipulation which is not improved by orthopedic shoes or
appliances.
CONCLUSION OF LAW
The criteria for a rating in excess of 30 percent for
bilateral pes planus have not been met. 38 U.S.C.A. §§ 1155,
5107 (West 1991); 38 C.F.R. §§ 4.1-4.14, 4.40-4.46, 4.71a,
Diagnostic Code 5276 (2000).
REASONS AND BASES FOR FINDING AND CONCLUSION
Disability evaluations are determined by the application of
VA's Schedule for Rating Disabilities, which is based on the
average impairment of earning capacity. Separate diagnostic
codes identify the various disabilities. 38 U.S.C.A. § 1155;
38 C.F.R. § 4.1. Where entitlement to compensation has
already been established and an increase in the disability
rating is at issue, it is the present level of disability
that is of primary concern. See Francisco v. Brown, 7 Vet.
App. 55, 58 (1994).
Disability of the musculoskeletal system is primarily the
inability, due to damage or infection in parts of the system,
to perform the normal working movements of the body with
normal excursion, strength, speed, coordination and
endurance. Functional loss may be due to absence of part, or
all, of the necessary bones, joints and muscles, or
associated structures, or to deformity, adhesions, defective
innervation, or other pathology, or may be due to pain,
supported by adequate pathology and evidenced by the visible
behavior of the claimant undertaking the motion. 38 C.F.R.
§ 4.40.
As regards the joints, the factors of disability reside in
reductions of their normal excursion of movements in
different planes. Inquiry will be directed to these
considerations:
(a) Less movement than normal (due to
ankylosis, limitation or blocking,
adhesions, tendon-tie-up, contracted
scars, etc.).
(b) More movement than normal (from flail
joint, resections, nonunion of fracture,
relaxation of ligaments, etc.).
(c) Weakened movement (due to muscle
injury, disease or injury of peripheral
nerves, divided or lengthened tendons,
etc.).
(d) Excess fatigability.
(e) Incoordination, impaired ability to
execute skilled movements smoothly.
(f) Pain on movement, swelling, deformity
or atrophy of disuse. Instability of
station, disturbance of locomotion,
interference with sitting, standing and
weight-bearing are related
considerations.
38 C.F.R. § 4.45.
Diagnostic Code 5276 provides that for bilateral severe
acquired flatfoot, with objective evidence of marked
deformity (such as pronation or abduction), with accentuated
pain on manipulation and use, and indication of swelling on
use, with characteristic callosities, a 30 percent rating is
warranted. For pronounced bilateral acquired flatfoot, with
marked pronation, extreme tenderness of plantar surfaces of
the feet, marked inward displacement and severe spasm of the
tendo achillis on manipulation, not improved by orthopedic
shoes or appliances, a 50 percent rating is warranted.
38 C.F.R. § 4.71a.
The veteran contends that a rating in excess of 30 percent is
warranted for his service-connected bilateral pes planus. He
specifically contends that his bilateral pes planus has
worsened, and that he has severe pain in the arches and
bottoms of his feet after prolonged standing or walking,
although he has not been seen by doctors in several years for
this disability.
In this case, the evidence shows that in service the veteran
was treated for bilateral plantar calluses, and was noted
upon VA examination in May 1969 to have callosities over the
4th and 5th metatarsal plantar areas of the feet and low
arches with callosities over the lateral portion of the
transverse arches. The veteran's service-connected bilateral
pes planus with callosities was rated 10 percent disabling
from March 1969, and 30 percent from June 1973. In December
1980, a VA examination resulted in a diagnosis of moderate
pes planus and deep tylomas of both feet, and in 1981 was
found to have moderately flattened longitudinal arches, with
callosities of both feet. A March 1983 VA examination noted
callosities of the plantar aspects of the feet, with
complaints of pain in the arch, mild degree of hallux valgus
of both feet, with minimal degenerative changes on the left.
A February 1984 VA examination revealed a distinct flattening
of both arches of the feet, inrolling of the toe on the
right, valgus deformity of the heels, worse on the right,
callosity at the metatarsophalangeal joint of the first toe
on each side, worse on the right, with callosities, and
tenderness on the distal head of the fifth metatarsal bone,
with inward thrust to the arches on both sides, with normal
metatarsal arches.
A summary of private outpatient treatment of the veteran by
Dumitru Caimacan, M.D., dated in February 1998, reflects
complaints of, and treatment for, low back, neck, and thigh
pain and strain, but no complaints regarding the feet.
In May 1998, the veteran filed his claim for increased
compensation for his service-connected bilateral pes planus,
asserting that this disability had worsened, and that he had
severe pain in the arches and bottoms of his feet after
prolonged standing or walking.
At a VA compensation examination the following month, in June
1998, the veteran reported that walking created foot pain
bilaterally after about one block of walking, that climbing
stairs was painful, that vacuuming and cleaning was no
problem, and he seldom cut grass. Physical examination
revealed a walk without antalgic gait pattern, with feet out
bilaterally 30 degrees when he walked, with flat feet
bilaterally, with no arch supports bilaterally with standing,
and varus of about 20 degrees with standing. The examiner
also noted that the veteran had a low transverse arch at the
metatarsal level bilaterally, with callus formations at the
4th metatarsal head bilaterally, which was tender, and hallux
valgus deformity of the great toe, which was about 30 degrees
deformity, and bunion formation bilaterally, with tenderness
on the right side at this joint. Plantar fascia had right
tenderness bilaterally at the metatarsal head area, but not
at the heel or calcaneal side. The relevant diagnosis was
bilateral pes planus with callus formation bilaterally.
After a review of the evidence of record, the Board finds
that a rating in excess of 30 percent for the veteran's
service-connected bilateral pes planus is not warranted. The
veteran's service-connected bilateral pes planus is
manifested by objective evidence of marked deformity, pain
accentuated on use, and characteristic callosities, which is
encompassed by a 30 percent rating for bilateral severe
acquired flat foot under Diagnostic Code 5276. 38 C.F.R.
§ 4.71a. A 30 percent rating specifically contemplates
objective evidence of marked deformity, which includes
findings of the feet out 30 degrees with walking and varus of
20 degrees with standing. A 30 percent rating contemplates
the veteran's pain on motion, including foot pain that is
accentuated with activity such as walking or climbing stairs,
as well as tenderness at the 4th metatarsal head bilaterally
and tenderness at the great toe on the right side. The
veteran's callosities are also encompassed by a 30 percent
rating, and there is no indication of swelling on use.
Additionally, the next higher rating of 50 percent is not
warranted because the evidence of record does not demonstrate
that the veteran's service-connected bilateral pes planus is
manifested by pronounced bilateral acquired flatfoot, with
marked pronation, extreme tenderness of plantar surfaces of
the feet, or marked inward displacement and severe spasm of
the tendo achillis on manipulation which is not improved by
orthopedic shoes or appliances. 38 C.F.R. § 4.71a. While
the veteran has 30 degrees of deviation of the feet while
walking, the evidence does not demonstrate marked pronation.
The veteran was noted to have tenderness at the 4th
metatarsal head bilaterally and tenderness at the great toe
on the right side, but this was not noted to be extremely
tender. With regard to inward displacement, the veteran has
20 degrees of valgus, which does not demonstrate marked
inward displacement. Moreover, the veteran indicated in
October 1998 that his orthotics were working well and that
there was some relief of his bilateral foot symptoms with the
inserts. There is no indication of an antalgic gait.
The Board has specifically considered the veteran's reported
pain on motion, including the veteran's reported pain with
prolonged standing or walking. However, pain and painful
motion are specifically contemplated by the rating criteria
under Diagnostic Code 5276. See 38 C.F.R. § 4.40, 4.45;
VAOPGCPREC 9-98. It is pertinent to point out that the
veteran's current 30 percent rating contemplates severe
bilateral foot disability. The relevant clinical evidence
does not show that there is pronounced disability, within the
meaning of the applicable rating criteria. For these
reasons, the Board must find that the criteria for a rating
in excess of 30 percent for bilateral pes planus have not
been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14,
4.40-4.46, 4.71a, Diagnostic Code 5276.
While the Board has considered the doctrine of affording the
veteran the benefit of any existing doubt with regard to the
issue of increased rating for bilateral pes planus, the
record does not demonstrate an approximate balance of
positive and negative evidence as to warrant the resolution
of this matter on that basis.
38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2000).
ORDER
A rating in excess of 30 percent for service-connected
bilateral pes planus is denied.
REMAND
In this case, the veteran's service-connected disabilities
consist of bilateral pes planus, currently rated 30 percent
disabling, a low back disability (lumbar strain, with
degenerative disc disease at L4-5 and L5-S1, with left
radiculopathy), currently rated 40 percent disabling, and
tinea pedis, currently rated noncompensably disabling. As
there are two or more service-connected disabilities, but the
disabilities bring the combined rating to only 60 percent,
the schedular requirements for the assignment of a TDIU are
not met. 38 U.S.C.A. §§ 1155, 5107(b) (West 1991); 38 C.F.R.
§§ 3.340, 3.341, 4.16 (2000).
A TDIU rating may be granted even though the disability
rating does not meet the schedular criteria if the veteran's
disabilities, in light of his education and occupational
background, preclude him from securing and following a
substantially gainful occupation. 38 C.F.R. §§ 3.340, 3.341,
4.16. The term unemployability, as used in VA regulations
governing total disability ratings, is synonymous with an
inability to secure and follow a substantially gainful
occupation. VAOPGC 75-91, 57 Fed.Reg. 2317 (1992). The
issue is whether the veteran's service-connected disabilities
preclude him from engaging in substantially gainful
employment (i.e., work which is more than marginal, that
permits the individual to earn a "living wage"). Moore v.
Derwinski, 1 Vet. App. 356 (1991). For a veteran to prevail
on a claim for a TDIU rating, the record must reflect some
factor which takes this case outside the norm. The sole fact
that a claimant is unemployed or has difficulty obtaining
employment is not enough. A high rating in itself is
recognition that the impairment makes it difficult to obtain
or keep employment, but the ultimate question is whether the
veteran is capable of performing the physical and mental acts
required by employment, not whether he can find employment.
Van Hoose v. Brown, 4 Vet. App. 361 (1993).
The veteran contends that his service-connected disabilities
of the feet and back prevent him from engaging in any form of
substantially gainful employment. After a review of the
evidence of record, the Board finds that a REMAND is
warranted for further development and clarification of
medical opinion regarding whether, in light of his education
and occupational background, the veteran's service-connected
disabilities preclude him from obtaining or maintaining
substantially gainful employment.
The evidence reflects that in service from 1965 to 1969 the
veteran was a rifleman. The veteran wrote on his TDIU
application that after service he worked as a transport
driver from 1988 to 1989, and from 1989 to 1990, and as a
laborer from 1990 to 1992. On the application, he indicated
that he did not leave his last job because of his disability,
and that he had not tried to obtain employment. He reported
that he had one year of college.
At a June 1998 VA examination, the veteran reported that he
worked after service as a bus driver, than worked at a
railroad company, then did construction work, and that he
primarily worked in construction and heavy labor. The June
1998 VA examination found moderate to severe degenerative
disc disease at L4-5 and L5-S1. As indicated above, the
veteran's service-connected bilateral pes planus is
manifested by severe bilateral flat foot, with objective
evidence of marked deformity (20 degrees varus, 30 degrees
bilateral hallux valgus), pain accentuated on use, and
characteristic callosities. The VA examiner wrote that,
because of the veteran's low back pain and flat feet, and
because his work experience was limited to construction and
heavy labor, ideally he should have a desk job. The Board
finds this opinion ambiguous regarding whether, in light of
his education and occupational background, the veteran's
service-connected disabilities preclude him from securing or
following a substantially gainful occupation of a more
sedentary nature.
The veteran's VA Vocational Rehabilitation folder reflects
that at an assessment in January 1999 he also reported
working as a laborer from 1992 to 1994, but was currently
unemployed, and reported that he completed the 11th grade of
high school. The examiner opined that the career fields of
interest to the veteran (plumbing, refrigeration repair)
obviously were not compatible with his service-connected
disabilities because these would require him to lift, stand,
walk, bend, etc. The examiner summarized that the veteran
did not have sufficient transferable military skills to
acquire suitable civilian employment, he had impairment from
his service-connected back and feet, lacked reasonably
developed skills, the effects of these restrictions on
employability affect both prior and current adjustment, and
that, through its physical effects, the service-connected
disability was a substantial part of the impairment.
The Board finds that the February 1999 VA Vocational
Rehabilitation report is ambiguous in its determination
regarding whether the veteran's service-connected
disabilities preclude him from securing or following a
substantially gainful occupation. The VA Vocational
Rehabilitation examiner noted that the veteran was attempting
to obtain TDIU, that the veteran seemed to prefer a
determination of medical infeasibility as opposed to pursuing
a legitimate program of Vocational Rehabilitation services,
and questioned the veteran's motivation to realistically
develop and pursue an appropriate rehabilitation training
goal. The VA Vocational Rehabilitation report reflects the
conclusion that it was determined reasonably feasible for the
veteran to pursue a program of vocational rehabilitation
services, but that the veteran declined to participate in
such a program of vocational rehabilitation services, and the
case was placed in a discontinued status.
For these reasons, the Board finds that further development,
including medical opinion, is warranted in order to determine
the issue of entitlement to a TDIU. Therefore, the appeal of
entitlement to a TDIU is REMANDED to the RO for the
following:
1. The RO should schedule the veteran
for a VA examination, and request a
social work survey, in order to assess
the effect of his service-connected
disabilities on the ability to secure or
follow a substantially gainful
occupation. The claims folder and a copy
of this REMAND must be made available to
and reviewed by the examiner, as well as
the social worker. In their respective
reports, the examiner and social worker
are requested to provide an opinion as to
the veteran's current functioning and
identify the conditions which limit his
employment opportunities. The examiner
and social worker should specifically
express an opinion as to whether it is at
least as likely as not that the
manifestations of the veteran's service-
connected disabilities, in light of his
education and occupational background,
preclude him from obtaining or retaining
any form of substantially gainful
employment, including employment other
than manual labor.
2. When the RO is satisfied that the
record is complete and that all requested
actions have been accomplished, the issue
of TDIU should be adjudicated on the
basis of all relevant evidence of record.
If the determination remains adverse to
the veteran, the veteran and his
representative should be furnished an
appropriate supplemental statement of the
case. The record should then be returned
to the Board for further appellate
review.
The purpose of this remand is to ensure a complete record for
appellate review and to assist the veteran with the
development of evidence in connection with his claim. The
Board intimates no opinion, either legal or factual, as to
the ultimate disposition of this appeal. The appellant has
the right to submit additional evidence and argument on the
matter or matters the Board has remanded to the RO.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
R. F. WILLIAMS
Veterans Law Judge
Board of Veterans' Appeals